Rhyme and reasons in the Hobby Lobby case

Michael McGough

Whatever your views about the legality of the Obama administration’s requirement that employee health plans cover contraception, you have to hope that the Supreme Court will take the case of Sebelius vs. Hobby Lobby Stores Inc. et al. After all, how often do law professors get to refer to a case that rhymes?

Poetry aside, the court has every reason to hear the case, in which a federal appeals court in Colorado looked with favor on the argument that Hobby Lobby, a “biblically founded” chain of hobby and craft stores, is protected by the Religious Freedom Restoration Act (or RFRA, as it’s known inside the Beltway).

That 1993 law says that a “person” can seek to opt out of a law if it would “substantially burden” the exercise of his or her religion. The government can force compliance, however, if the law serves a compelling interest and is narrowly tailored to achieve its objective.

One reason for the Supreme Court to resolve this question is to expeditiously clear up confusion about enforcement of the Affordable Care Act, a.k.a. Obamacare. Another is that federal appeals courts have split on the issue. The Cincinnati-based U.S. 6th Circuit Court of Appeals ruled that Autocam Corp., which provides provides manufacturing services for the automotive and medical industries, isn’t covered by RFRA.

“In enacting RFRA, Congress specifically recognized that individuals and religious organizations enjoy free exercise rights under the 1st Amendment and, by extension, RFRA,” the court said. “In contrast, the legislative history makes no mention of for-profit corporations. This is a sufficient indication that Congress did not intend the term ‘person’ to cover entities like Autocam when it enacted RFRA.”

The Obama administration takes the same position in the Hobby Lobby case. A petition filed by Solcitior General Donald Verrilli also argues that in enacting RFRA, Congress preserved a distinction in the law between “the rights and responsibilities of a corporation and those of its owners.”

Ah, but what about Citizens United, the landmark, non-rhyming case in which the Supreme Court held that corporations have a 1st Amendment right to express an opinion about candidates and elections? If a corporation has free-speech rights, why can’t a corporation have a right to religious freedom?

Fascinating as the debate over a constitutional free exercise right for corporations may be, the Supreme Court doesn’t have to delve into it. Unlike the 1st Amendment, RFRA is a simple act of Congress -- and its plain language and legislative history suggest that it protects people, not hobby shops.